Interstate R. Co v. Tyree
| Decision Date | 09 September 1909 |
| Citation | 65 S.E. 500,110 Va. 38 |
| Parties | INTERSTATE R. CO. v. TYREE. |
| Court | Virginia Supreme Court |
1. Masteb and Sebvant (§ 289*)—Injuries— contributoby negligence—evidence.
That a brakeman's foot, ankle, and leg were caught and crushed while coupling cars equipped with automatic couplers does not justify a finding of contributory negligence per se.
[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090; Dec. Dig. § 2S9.*]
2. Negligence (§ 113*) — Pleading—Negativing conteibutoby negligence.
Contributory negligence is a matter of defense, which need not be anticipated or negatived by plaintiff.
[Ed. Note.—Por other cases, see Negligence, Cent. Dig. § 186; Dec. Dig. § 113.*]
3. Negligence (§ 122*)—Burden of Proof-Contributory Negligence.
The burden of proving contributory negligence is upon defendant.
[Ed, Note.—For other cases, see Negligence, Cent. Dig. § 221; Dec. Dig. § 122.*]
4. Negligence (§ 135*) — Actions — Weight of Evidence.
Contributory negligence must be proved by a preponderance of defendant's evidence, unless it appears from plaintiff's own evidence.
[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 274; Dec. Dig. § 135.*]
5. Negligence (§ 1*)—Elements—"Actionable Negligence."
Negligence consists in a legal duty to use care, and its breach, without intention to produce the precise damage which follows, and, in order to be "actionable negligence, " must be followed by damage to plaintiff, resulting in a natural and continuous sequence.
[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 1; Dec. Dig. § 1.*
For other definitions, see Words and Phrases, vol. 1, pp. 148, 149; vol. 8, p. 7563; vol. 5, pp. 7729-7731; vol. 8, pp. 7729-7731.]
6. Master and Servant (§ 259*)—Injuries-Actions—Pleading—Declaration—Sufficiency.
The declaration alleged that the plaintiff was a brakeman; that it was defendant's duty to use reasonable care for his safety, and prevent his injury by the negligence of the engineer and conductor, who were coemployes of a higher grade and had general power over plaintiff's immediate work; that in disregard of its duty defendant, through such employes, negligently caused a car to be violently pushed against plaintiff, while coupling cars in the discharge of his duty as brakeman, and without negligence on his part. Held, that the declaration alleged the essential elements of an action for negligence.
[Ed. Note.—For other cases, see Master and Sen-ant, Cent. Dig. § 838; Dec. Dig. § 259.*]
7. Pleading (§ 192*)—Demurrer—Grounds-Bill of Particulars.
Where the declaration states a cause of action, if defendant desires a more particular statement thereof, he should move for a bill of particulars, under Code 1904, § 3249. and not demur to the declaration.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 409; Dec. Dig. § 192.*]
8. Pleading (§ 381*) — Declaration — Evidence.
Where the main facts of the cause of action are sufficiently alleged in the declaration, the consequential and evidential facts that canbe reasonably implied are admissible, without being alleged.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 1252; Dec. Dig. § 381.2-*]
9. Masteb and Servant (§ 276*)—Injuries-Actions—Sufficiency of Evidence.
In a brakeman's action for injuries sustained while coupling cars, evidence held to sustain a finding for plaintiff.
[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 950; Dec. Dig. § 276.*]
Error to Circuit Court, Wise County.
Action by Jesse Tyree against the Interstate Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Bullitt & Chalkley, for plaintiff in error.
Vicars & Peery and Roher, Ainsworth & Dawson, for defendant in error.
This action was brought by the defendant in error, Jesse Tyree, against the plaintiff in error, the Interstate Railroad Company, to recover damages for personal injuries imputed to the negligence of the defendant. The trial resulted in verdict and judgment for the plaintiff, and to that judgment this writ of error was awarded.
The first assignment of error involves the action of the court in overruling the demurrer to the declaration. The declaration alleges that the defendant was a railroad company, and owned and operated a railroad from Stonega to Appalachia, in Wise county, Va., and used and operated on its road steam locomotives and cars for the transportation of passengers and hauling express and freight; that at the time of the injury complained of the plaintiff was a brakeman in the employment of the defendant, engaged in the physical operation of its trains in coupling cars; that it was the duty of the defendant to use due reasonable and proper care for the safety and protection of the plaintiff, and to see that he was not injured by the negligence of the engineer and conductor of the defendant, who were in charge and control of the operation of the locomotive and cars which were then and there being coupled together by the plaintiff; that the engineer and conductor were coemployes of the plaintiff of higher grade, and were charged with the duty and power of controlling and directing the general service and immediate work of the plaintiff at the time of the injury; that the defendant did not regard its duty in that behalf, but through its engineer and conductor negligently, wrongfully, and improperly caused a car which was then standing upon the track to be pushed with great violence against tie plaintiff, while in the faithful discharge of his duty of brakeman in coupling the cars together and without negligence or fault on his part, crushing his foot, ankle, and leg between the end of another car then stand ing on the defendant's track and the end of the car which was pushed and run against him by the conductor and engineer.
The first ground of demurrer charges that the plaintiff himself was guilty of contributory negligence. This contention proceeds upon the assumption that pleadings must be taken most strongly against the pleader, and that the fair inference to be drawn from the declaration is that the plaintiffs foot, ankle, and leg were caught between the drawheads or bumpers of the two cars, and, as "the law requires railroad companies to have self-couplers on all their cars, it will be presumed that this company complied with the law in that respect, * * * especially where there is no charge to the contrary"; that these couplers are operated from the outside, and that a brakeman who goes in between cars to couple them Is ipso facto guilty of contributory negligence; that, if this be not a fair inference, then "the declaration is too uncertain and vague in this: that it does not explain how the plaintiff got his foot, ankle, and leg between the cars, or how he got them injured."
We cannot concur in the suggestion that it is a reasonable inference, from the mere fact that a brakeman's foot, ankle, and leg were caught and crushed while engaged in coupling cars, that he was guilty of negligence per se. All the authorities hold that contributory negligence is matter of defense, which need not be anticipated or negatived by the plaintiff, either in his pleadings or evidence; and it is the settled rule that, where the defendant relies on contributory negligence of the plaintiff to defeat the action, the burden of proving such contributory negligence rests upon him, and must be established by a preponderance of evidence, unless, indeed, such contributory negligence appears from the plaintiff's own evidence.
Upon the second ground, it is not pretended that the declaration does not state a cause of action; but it is said it does not sufficiently explain how the plaintiff got his foot, ankle, and leg caught between the cars, or how the injury occurred.
The following analysis of a cause of action on negligence is given in 1 Shearman & Redfield on Neg. (5th Ed.) § 5:
Now, then, let us subject the allegations in this declaration to the test of the foregoing analysis. As we have seen, it is al-leged (1) that at the time of the injury the plaintiff was a brakeman in the service of the defendant in the physical...
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